Calif. Measure Barring Racial Preferences Reinstated

A federal appeals court last week reinstated a California
constitutional amendment that bars state and local governments from
using racial or gender preferences in education, employment, and
contracting.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit
unanimously overturned a federal district judge who had blocked the
ballot measure known as Proposition 209 from taking effect. The
district judge ruled last December that the amendment, passed by
California voters in November, likely violates the U.S. Constitution's
guarantee of equal protection under the law.

School officials throughout the state have been warned that if the
measure takes effect, they no longer would be allowed to conduct
minority-teacher-recruitment programs or set aside percentages of
public contracts for companies owned by women or members of minority
groups.

Other programs called into question by the measure include voluntary
desegregation plans, college-high school mentoring programs targeted at
minority students, and single-sex public schools. ("Anti-Preference Measure Sparks Competing
Suits," Nov. 13, 1996.)

The panel of Republican-appointed appeals court judges ruled on
April 8 that the initiative does not violate the federal equal
protection clause because it has the same goal as that clause: to
eliminate government classifications based on race and sex.

"Proposition 209's ban on race and gender preferences, as a matter
of law and logic, does not violate the equal protection clause in any
conventional sense," said the opinion by U.S. Circuit Judge Diarmuid F.
O'Scannlain.

The court cleared the way for the measure to take effect within
three weeks. But a coalition of civil rights groups that challenged the
measure said last week that it would seek a rehearing before a larger
panel of the 9th Circuit court.

Implications for Schools

The decision is "a grave disappointment," said Mark Rosenbaum, the
legal director of the American Civil Liberties Union of Southern
California.

But Republican Gov. Pete Wilson, a strong backer of the measure,
said the ruling brings the state "one step closer to ensuring the kind
of society which will afford genuine equality and access to opportunity
to all of its citizens."

State education officials have stressed that even if the provision
takes effect, its full implications for school districts will only
become clear through what is likely to be years of additional
litigation.

In a letter to school superintendents after the passage of
Proposition 209 last fall, Delaine Eastin, the state schools chief,
said that "any state or local school district program" based on race or
sex could be invalidated. But she urged districts not to drop effective
programs right away.

Joseph R. Symkowick, the general counsel of the state education
department, said the measure's immediate impact would be on employment
practices.

"But we believe it would require separate state court action to
remove such things as voluntary desegregation programs," he said.